In Zeller v. Allen, William and Elizabeth Moncrief created a trust in 1966 that would distribute to Tex’s children and lineal descendants upon his death. No. 13-24-00200-CV, 2025 Tex. App. LEXIS 8941 (Tex. App.—Corpus Christi November 20, 2025, pet. filed). Charles Moncrief (Tex’s son) died in January 2021, and Tex died in December 2021. DNA testing revealed Zeller was Charles’s biological daughter, but she was born outside of marriage. Zeller obtained Charles’s tissue samples through subpoenas that violated procedural rules, including false certifications about service and filing.
Zeller sued the co-trustees for breach of fiduciary duty, an accounting of the trust, and attorney’s fees. Zeller sought a declaration that she is a beneficiary under the trust and is entitled to copies of all documents and communications regarding the trust, including “an accounting and inventory” of the estate. As Charles’s alleged biological daughter, she claimed that she was “entitled to her portion of the 1966 Trust assets.”
The co-trustees filed a motion for summary judgment, asserting that Zeller was not a beneficiary of the trust and, accordingly, her contingent causes of action must fail. According to appellees, even assuming that Zeller is Charles’s biological daughter, Zeller still “does not fall within the beneficiary class of ‘children and lineal descendants’ as that phrase is used in the trust” because in 1966, children “born out of wedlock” were not recognized as “children and lineal descendants.” According to co-trustees, at the time the Moncriefs created the trust, a child born outside of the marriage was not considered a “child” or “descendant” under Texas law, and non-marital or “illegitimate” children did not fall within the legal meaning of children or lineal descendants. Zeller responded to appellees’ motion for summary judgment, asserting that the plain and ordinary meaning of the language in the trust included non-marital children. According to Zeller, because the trust did not include limiting language or modify the terms “child or lineal descendant,” the only reasonable interpretation is to include all the progeny or descendants of a person, irrespective of legitimacy. The trial court granted the co-trustees’ motion, and Zeller appealed.
The court of appeals affirmed, holding that the settlors’ intent in 1966 did not include illegitimate children:
Zeller’s causes of action are contingent on her being a beneficiary of the trust… The trust provides that upon the death of Tex, the trust estate shall be divided “into equal parts, one for each then living child” of Tex, and “one part for the children and lineal descendants of each child who predeceased [him] leaving a surviving child or children or lineal descendants thereof.” The trust does not define the terms “children and lineal descendants”; therefore, we look to the law that was in effect at the time that the trust became effective—here December 22, 1966. In 1966, the term “children” in the Probate Code did “not include an unrecognized, illegitimate child of the father.” The Probate Code further provided that “an illegitimate child” could not inherit from his father unless the father and the illegitimate child’s mother “shall afterwards intermarry [then] . . . such child . . . shall . . . be legitimated and made capable of inheriting his estate.” Courts routinely applied this definition to exclude non-marital children. It is undisputed that Zeller was not a marital child of Charles. Because Texas law as it existed at the time did not recognize nonmarital children as descendants for inheritance purposes, we conclude that it was the Moncriefs’ intent to only include marital children as beneficiaries. Consequently, the burden shifted to Zeller to raise a fact issue regarding the Moncriefs’ intent.
Zeller recognizes that in 1966, “Texas law reflected a presumption that children born outside of wedlock were not afforded the same rights as children born during a marriage.” Nonetheless, she argues that we adopt the changes to public policy and Texas law regarding children born out of wedlock. However, the law requires us to look to the Moncriefs’ intent when they created the trust. In fact, according to the Supreme Court of Texas, “[i]t would be quite strange to ascertain th[e settlor’s] intention by looking to the provisions of statutes enacted after the trust instruments became effective or considering changes in public policy as reflected thereby.” The fact that the law has subsequently changed has no bearing on determining the Moncrief’s intent when they drafted the trust because we must “apply the law as it existed at the time the [trust] was executed.” Zeller provides us with no evidence that the Moncriefs’ intended, contrary to the law in effect at the time the trust became effective, to include non-marital, illegitimate children as lineal descendants and beneficiaries of their trust. As a matter of law, Zeller is not a beneficiary of the trust.
Id. The court affirmed the summary judgment.
Zeller filed a petition for review to the Texas Supreme Court, and it requested a response to the petition. The response was recently filed, and the Court is considering the case.